-Submitted by David Drumm (Nal), Guest Blogger
Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, has a different perspective on the constitutionality of the Affordable Care Act. Professor Balkin argues that the individual mandate is a tax and the Constitution gives Congress the power to tax and spend money to promote the general welfare.
This necessarily and properly avoids the Commerce Clause.
-Submitted by David Drumm (Nal), Guest Blogger
EMTALA is an acronym for Emergency Medical Treatment and Active Labor Act passed in 1986 and signed into law by then-President Ronald Reagan. It requires hospitals and ambulance services to provide care to anyone needing emergency healthcare treatment regardless of citizenship, legal status or ability to pay. Since there are no provisions for reimbursement, it’s often cited as an example of an unfunded mandate. EMTALA applies only to “participating hospitals”, those who accept funds under the Medicare program, which for practical purposes, is all hospitals. EMTALA was enacted to prevent the practice of “patient dumping”, where, because of the inability to pay or insufficient insurance, hospitals would discharge emergency patients. Hospitals and physicians can incur a $50,000 fine for each violation.
EMTALA provides access to the health care system for everyone.
Virginia Attorney General Ken Cuccinelli announced this morning that he will file a Petition for Certiorari Before Judgment today requesting that the U.S. Supreme Court review the Commonwealth v. Sebelius decision without waiting for a ruling from the United States Court of Appeals for the Fourth Circuit.
I have received a significant number of emails after my earlier stated views on the national health care legislation were raised in the hearings this week before the United States Senate Committee on the Judiciary. Unfortunately, I am plowed under this week in litigation, but I wanted to offer a brief response to Harvard Law Professor and former Reagan Solicitor General Charles Fried who disagreed with my views on the danger to federalism.
Continue reading “Health Care and Federalism: A Response to Professor Charles Fried”
Dan Snyder is reportedly planning a defamation action against Washington’s City Paper for a scathing story about his controversial time as owner of the Washington Redskins. The case could prove an interesting battle over first amendment rights and defamation law.
Continue reading “Redskins Owner Threatens Newspaper With Libel Suit After Unflattering Article”
Here is my column in USA Today (which was posted yesterday but will run in print on Monday) on the charge that Judge Vinson is an activist after his striking down of the entire health care plan. While I did not view the opinion as particularly strong in its substantive analysis and did not like the rhetoric flourishes (as discussed with Lawrence O’Donnell this week), I find the charge of activism to be a bit forced over the issue of severability.
Continue reading “The Ford Pinto Act: Is The White House Claim of “Activism” Fair?”
Minot State University professor emeritus Eric Clausen has filed his second federal complaint alleging that he was retaliated against by the National Geographic Society after he complained that the contest discriminated against girls because virtually no girls have won the national title.
Zach Wahls, 19, is a University of Iowa student who gave a remarkable presentation at a public forum on House Joint Resolution 6 in the Iowa House of Representatives concerning same-sex marriage. Wahls has two mothers and came to tell legislators about his parents and his life.
Continue reading “Zach Wahls Has Two Mommies and A Lot To Say”
United States District Court Judge Roger Vinson has struck down the entirety of the National Health Care law (The Patient Protection and Affordable Care Act) as unconstitutional. What is most interesting is his decision that the entire act had to be struck down because of the individual mandate provision’s unconstitutionality. Vinson grants declaratory relief but declines to grant injunctive relief.
Continue reading “Federal Court in Florida Strikes Down Health Care Law As Unconstitutional”
Submitted by Mark Esposito, Guest Blogger
California professional golfer (and former police officer) Lana Lawless is challenging the LPGA’s rule requiring tournament participants to be “female by birth.” The LPGA has ruled, according to Lawless, that as a transgender woman, she is ineligible to compete. The rule seems to fly directly in the face of California’s Unruh Law which holds that all people in the state are “free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
Continue reading “Playing It Straight: LPGA’s “Female By Birth” Rule Challenged”
The prosecution has rested in the trial of former New York television executive Muzzammil Hassan, 46, for the beheading of his wife at a television studio. Hassan recently asserted his right to self-representation in the case after having open disagreements with his counsel. We will now see if he actually puts on a case in chief in his own defense. Short of an insanity defense, it is difficult to see a viable defense argument in the case. As discussed below, I am also unsure why some damaging evidence was allowed in the case.
Continue reading “Prosecution Rests in Hassan Beheading Case — Was It Appropriate To Use His Silence Against Him at Trial?”
The Missouri Supreme Court has handed down an important ruling on reverse discrimination — upholding an award of more than $2 million for a white prosecutor, Melissa Howard, who was denied a judgeship in 2006 because the Kansas City Council wanted a minority in the position.
For civil libertarians, the gradual de-evolution of our criminal justice system just got a bit more medieval. Virginia Republican Sen. Emmett Hanger is upset about the prison budget so he has found a way to trim costs by simply castrating sexual offenders. This is the same proposal vetoed four years ago, but there is now a conservative Republican governor in office and some believe it could pass.
Continue reading “Sen. Hanger Proposes Castration for Sex Offenders”
Submitted by Lawrence Rafferty (rafflaw), Guest Blogger
Earlier this week I read on the ACLU website the Appellate Court decision in ACLU, et al v. Department of Defense, et al, which decided you and I are not entitled to learn how our government tortured detainees illegally. “A federal appeals court today ruled that the government can continue suppressing transcripts in which former CIA prisoners now held at Guantánamo Bay describe abuse and torture they suffered in CIA custody. The ruling came in an ACLU Freedom of Information Act (FOIA) lawsuit to obtain uncensored transcripts from Combatant Status Review Tribunals (CSRTs) used to determine if Guantánamo detainees qualify as “enemy combatants.” http://www.aclu.org/national-security/court-rules-government-can-continue-suppress-detainee-statements-describing-tort-0 It didn’t surprise me that the ACLU lost this appeal, but what surprised me is the lack of attention this case got in the main stream media. Continue reading “Americans Don’t Have the Right to Learn Just How Detainees Were Tortured”
-Submitted by David Drumm (Nal), Guest Blogger
This case was argued before the Supreme Court on 6 Oct. 2010 and we are awaiting their decision. This is the “funeral picketing” case involving Petitioner Albert Snyder, the father of Lance Corporal Matthew Snyder who was killed in Iraq, and Respondent Rev. Fred Phelps of the Westboro Baptist Church.